Sickness or accident: what’s the difference?

Managing staff is a delicate task, requiring not only human resources skills but also a good understanding of the legal aspects. One of the thorniest issues for employers is how to distinguish between illness and accident when one of their employees suffers a health problem. Although this distinction is subtle, it has major implications for the way costs are met and the continuation of salary. Here’s what you need to know to avoid common pitfalls and manage these situations effectively.

What does the law define as an accident?
According to the Federal Law on the General Part of Social Insurance (LPGA), an accident is characterised by five specific and cumulative conditions:

1. Sudden onset: The injury must be instantaneous or occur within a very short period of time after the event.
2. Intention: The injury must be unintentional (same as self-inflicted injuries). Injuries intentionally caused by a third party are accidents (e.g. assaults).
3. External cause: The injury must be caused by an external factor, such as a shock or a fall, and not by an internal reaction of the body.
4. Extraordinary cause: The event must be unusual in the context of daily activities. For example, breaking a tooth while eating a fruit tart because of a stone is considered extraordinary. On the other hand, breaking a tooth while eating a galette des Rois (or a piece of fruit on its own), because of the bean (or a stone) whose presence is to be expected, is considered ordinary.
5. Causal link: There must be a direct link between the event and the damage to health.
   

Why is this distinction crucial?

The distinction between illness and accident is essential, as it determines which insurance will cover the costs and how absences will be managed. If the event is classified as an accident, accident insurance (LAA) will cover the costs, with no deductible or co-payment for the employee, and a wider range of benefits than basic health insurance. If the injury is considered an illness, basic health insurance will cover the costs, often at the employee’s expense.
Pitfalls to avoid and points to watch out for

1. Complete and accurate documentation
   In the event of an incident, it is crucial to document the circumstances and witness statements. This includes the date, time, place and a detailed description of the event. Accurate documentation can help to clearly establish whether the conditions for an accident have been met.
2. Rigorous medical assessment
   The role of the doctor is crucial in determining natural causation. Make sure your employees provide medical certificates specifying the cause of illness or accident.
3. Relapses and late consequences
   Even if an accident seems to have healed, relapses can occur. Make sure that these cases are properly monitored and documented, as they may still be covered by accident insurance if the causal link is proven.
4. Legal advice and recourse
   If the insurance company refuses to recognise an event as an accident, do not hesitate to challenge the decision. You can take legal action to defend the rights of your employees and ensure that they are adequately covered.
   Illustrations of ambiguous situations
   Bee sting
   If an employee is stung by a bee, it’s an accident because it’s a sudden, involuntary event caused by an unusual external factor.

Inguinal hernia
An inguinal hernia (relating to the groin) is generally an illness, unless it occurs after a sudden and unusual physical effort, such as lifting a very heavy object unexpectedly.
However, if carrying heavy loads is part of the employee’s daily routine, this same hernia will be considered an occupational illness (covered in the same way as an accident).
Tinnitus after a concert
If an employee develops tinnitus after a concert, this is not an accident, as the exposure to noise was prolonged and not sudden. However, if the tinnitus occurs after a sudden explosion at a festival, it could be considered an accident.
Insulation
Inadvertently spending hours in the sun at the risk of catching sunstroke leading to incapacity for work is considered to be an illness, due to the foreseeable and non-sudden nature of the event, caused by negligence on the part of the person concerned.

Conclusion

Distinguishing between illness and accident is not always easy, and can become a real headache for employers.
In fact, wrongly declaring an illness to your accident insurer could increase the costs of managing your contract (file management fees) and lead to an increase in your premiums.
At ekspert, we are used to this and are here to help you save time. By mastering the legal criteria and adopting rigorous documentation and monitoring practices, we can ensure that these situations are managed efficiently.

Contact us today for a personalised quote!